Bits on Broadband : with Fred Campbell

“The Force is what gives a Jedi his power.” Obi-Wan Kenobi, Star Wars (1977).

The FCC derives its power from Congress. For an FCC rule to have the force of law, it must fall within the scope of the authority Congress has delegated to the FCC. (See American Library Ass’n v. FCC, 406 F.3d 689, 691 (D.C. Cir. 2005).) One problem with the FCC’s proposed net neutrality rules is that they attempt to exercise more power than Congress has given the agency. Although it’s been a long time since I’ve indulged in a jurisdictional analysis, I’ll do my best below to explain why the FCC lacks jurisdiction to enact its proposed rules.

In the net neutrality NPRM, the FCC indicates its intention to rely on its “ancillary jurisdiction” to impose net neutrality rules on broadband Internet access service providers. (NPRM at paragraphs 83-87.) To exercise ancillary jurisdiction, the subject of the regulation must be reasonably ancillary to the effective performance of the Commission’s various responsibilities for “something.” (See Comcast Network Management Practices Order at paragraph 15.) In the Comcast Network Management Practices Order, the FCC found jurisdictional “somethings” in sections 1, 201, 230(b), 256, 257, and 601(4) of the Communications Act as well as section 706 of the Telecommunications Act of 1996. In the NPRM, the Commission adds Title III generally to the mix of potential statutory “somethings” underpinning its ancillary authority.

At the outset, I’m surprised that the FCC has put so much emphasis on section 230(b) of the Act. That section states the intent of Congress to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” (Emphasis added). By its plain language, section 230(b) expresses Congress’ intent to exempt the Internet from regulation entirely – which makes it an an odd provision to rely upon for ancillary jurisdiction over the Internet. (The FCC does rely on several other provisions for jurisdiction, however, and the Supreme Court said in Brand X (albeit in dicta) that the FCC could exercise ancillary jurisdiction over information services.)

Assuming the FCC does have jurisdiction to regulate the Internet pursuant to ancillary authority, it lacks jurisdiction to enact its proposed net neutrality rules as written, because the proposed non-discrimination rules are stricter than those applicable to monopoly common carriers in Title II of the Act. Even in the heydays of the Bell system, when POTS was largely a monopoly service, Congress prohibited only unreasonable “charges, practices, classifications, and regulations” in section 201(b), and “unreasonable discrimination” in section 202 of the Communications Act. (Emphasis added.) Congress thus left common carriers latitude to make reasonable distinctions and discriminations in the provision of services. The FCC unfortunately eschews this approach in the NPRM by eliminating all latitude for reasonableness in the net neutrality context except in connection with “network management.” Because this is a far more narrow approach than that dictated by Congress for common carriers in Title II, the FCC lacks jurisdiction to impose such regulations on non-Title II mobile wireless broadband Internet access providers. Otherwise, the FCC would be able to exercise more expansive authority over non-common carriers pursuant to Title I than Congress has provided the FCC over common carriers pursuant to Title II. Such an interpretation of the FCC’s jurisdiction would be manifestly inconsistent with the structure of the Act itself and the clear intent of Congress.

Because Congress prohibits only unreasonable discrimination in Title II (which applies to both wireline and wireless carriers), it is not reasonably ancillary to the Commission’s responsibilities relating to regulation of the Internet to eliminate reasonableness through ancillary jurisdiction. Otherwise the Internet would be regulated more strictly than POTS, and nowhere in the Act is there any indication anywhere that the Internet should be regulated more strictly than monopoly telephone service. That is why the FCC’s proposed net neutrality rules would subvert the intent of Congress and exceed the FCC’s statutory authority. I suspect that the FCC knows as much, but is attempting to blast its way forward even without the force of law.

“Hokey religions and ancient weapons are no match for a good blaster at your side, kid.” Han Solo, Star Wars (1977).

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broadband   net neutrality